The Crown’s past attempts to settle Maori land claims

Press, 13 May 1988, Page 16

The Crown’s past attempts to settle Maori land claims

Ngai Tahu

Land Claim

This is the last of 10 historical articles giving the background to the Ngai Tahu land claim in the South Island. This one, by HARRY EVISON, is about past Crown attempts to settle the grievances. The articles have been written for the Ngai Tahu Maori Trust Board and will be published as a booklet by the board.

WHEN GOVERNOR Grey took office in 1845 he was instructed by the British Government to “honourably and scrupulously fulfil the conditions of the Treaty of Waitangi.” Had he done so, there might have been no Ngai Tahu claim today. But Grey was allowed to undermine the Treaty. First he abolished the “Protectors of Abort-, gines” appointed by Governor Hobson to see that Maori interests under the Treaty were safeguarded. Then in 1848 he laid down the policy that anything the Maoris were allowed to keep for themselves when selling land to the Crown was merely a “boon” from the Government, not a right under Article Two of the Treaty. Under Article Three of the Treaty the Crown undertook to “protect” the Maoris. Grey took upon himself the role of “protector” in the paternal sense, as if Maoris were incapable of knowing what was best for themselves and had to be rescued from their own devices.

The Ngai Tahu claim may be said to date from October, 1849/ when Matthias Tiramorehu wrote from Moeraki to. Lieutenant-1 Governor Eyre complaining about the smallness of Mantell’s reserves.

At Governor Grey’s direction; 'Eyre rejected the complaint on the grounds that “Questions relating to land and reserves cannot be reopened once they have been settled.” This showed the futility of having to appeal to the Governor against his own decisions. How did elected Governments later respond to the claim?

The first step taken by the newly elected colonial Government in 1856 was the Native Reserves Act. This gave control of Maori reserves to Government Commissioners who could lease out the land for 21-year terms and direct how the money was to be used.

In 1860 the Reserves Commissioner, W. L. Buller, persuaded the Kaiapoi Maoris to divide their large reserve into individual holdings of 14 acres. This was done with most other Ngai Tahu reserves by the Native Land Court in 1868. Individualization was supposed to be for the benefit of the Maoris. But the AttorneyGeneral, Henry Sewell, later explained that the Government’s purpose was to bring more of the land on to the market and to break down the communal Maori system. And so it happened. Finding their individual plots too small for farming, many owners had to lease or sell them off, and bitter

disputes over individual ownership rights often divided previously close-knit communities. While Alexander Mackay was commissioner from 1864 to 1882 he did his best to protect Ngai Tahu interests. But in 1882 Maori Reserves were transferred to the Public Trustee, and the position deteriorated. There was no requirement for the trustee even to consult with the owners. The Crown at various time took Maori reserve lands for roads and railways, scenic reserves, defence purposes, and to meet the demands of local bodies and mining and timber companies, often without the owners’ knowledge.

In 1920 the reserves were transferred to the “Native Trustee” in the Department of Native Affairs — later the Maori Trustee in the Department of Maori Affairs. In 1975 a Royal Commission on Maori Reserves made recommendations to give more control to the Maori owners, some still not implemented. In 1868 Ngai Tahu took their claim under Kemp’s Deed to the Native Land Court’s first sitting at Kaiapoi. A challenge to the validity of Kemp’s Deed failed. But Ngai Tahu then brought a claim for the promised mahinga kai (natural food resources). After granting some eel-weirs, Chief Judge Fenton surprised the claimants by introducing an order of reference from the

Government requiring him then and there to settle all claims under Kemp’s Deed. Ngai Tahu were not prepared for this, as many claimants were in Otago. With their lawyer they walked out in protest. Nevertheless, Fenton proceeded to award on average four acres per person, on top of Mantell’s ten acres, in “final settlement” of the Ngai Tahu Claim. Years later Fenton admitted that this was quite insufficient.

The claimants then appealed to the Supreme Court, but the Government put the case beyond the Court’s reach by passing the Ngaitahu Reference Validation Act, legitimizing Fenton’s award. The Supreme Court subsequently declined jurisdiction over costs, although Ngai Tahu argued that Maori customs and usages had by the Treaty of Waitangi become part of the common law of New Zealand and therefore lay within the jurisdiction of the Court. The following year the Court of Appeal decided against Ngai Tahu over the Princes Street Reserve in Dunedin, also on a technicality. Turning to Parliament, Ngai Tahu in 1879 succeeded in getting a Royal Commission set up to investigate the claim. The Commissioners Smith and Naim were highly critical of Fenton’s proceedings, and announced that in both Otago and Kemp’s Blocks Ngai Tahu were entitled to the "Tenths,” since they had sold both to the New Zealand Company. The Native Minister, John Bryce, thereupon cut off the commission’s funds and announced that no action would be taken.

A further Royal Commission under Alexander Mackay in 1887 recommended that to remedy landlessness Ngai Tahu needed a grant of 186,112 acres (75,318 ha), of which 140,000 should be for endowment purposes. Nineteen years elapsed before Parliament in 1906 passed the South Island Landless Native Act. This provided for 57,514 hectares to be granted, to allow 20ha per adult and Bha per child. But the land allocated by the Government was largely so

.rugged and remote as to be uneconomic, and in 1909 the act was repealed before all the land had been granted. According to the Under-Secretary of Lands in 1910, “The granting of land was. an act of grace on the part of the Crown, and there was no obligation to make any awards whatever.” Grey’s policy lived on. In 1921 a further Royal Com-, mission recommended that Ngai Tahu should have been paid £78,125 instead of £2OOO for Kemp’s Block in 1848. This with .interest and adjustments entitled them to £354,000 in 1921 — a tidy sum, representing perhaps' nearly $2O million in today’s terms.

. But 23 years elapsed before the Government in 1944 passed the Ngai Tahu Claim Settlement Act providing among the 5000. beneficiaries a grant of £lO,OOO. ($20,000) a year for thirty years, later continued indefinitely. However the 1944 Act addressed only Kemp’s Deed, not the.

Treaty, and today half-a-century of inflation has reduced the annual $20,000 to barely onetwentieth of its original value. The policy established by ,Grey, that Maoris could only, ('receive their share of the country’s economic resources as “hand-outs” from a paternalistic government instead of as a right •under the Treaty of Waitangi, has continued down to the present day. It is the basic point at issue in the Ngai Tahu Claim. ! Ngai Tahu want to return to the provisions of the Treaty and manage their own due share of the country’s resources for themselves.

HARRY EVISON is a consultant historian to the. Ngai Tahu Maori Trust Board, and a former senior lecturer in history at Christchurch Teachers College. His 1952 M.A. thesis was the first tailed study of the Ngai Tahu .claim.